RESPONSE TO COMMENTS

Transcription

1 Page 1 of 33 New Jersey Department of Environmental Protection Division of Water Quality Bureau of Financing and Construction Permits RESPONSE TO COMMENTS The New Jersey Department of Environmental Protection (Department) issued as a draft permit proposal to revoke and reissue the New Jersey Pollutant Discharge Elimination System (NJPDES) General Permit for Combined Sewer Systems (CSS), NJPDES No. NJ , on August 27, This General Permit was last reissued on February 28, 2000 and was due to expire on February 28, The issuance of the draft permit and the scheduling of a public hearing regarding the draft permit were public noticed in the DEP Bulletin on August 27, The Public Notice for the issuance of the draft permit and the public hearing were published in The Record, The Star-Ledger, The Asbury Park Press, The Times, and the Courier-Post. The public comment period was, initially, scheduled to close on October 18, The Public Notice, the draft permit and associated documents were mailed directly to permittees currently authorized under the General Permit, consultants who work with the permittees and other interested parties including municipal, State and Federal officials and were made available at the Division of Water Quality s website for permitting and technical information at The Department held a Public Hearing on October 3, 2003 at the New Jersey Department of Environmental Protection Offices at 401 East State Street, Trenton, New Jersey, in the Public Hearing Room on the first floor. The public hearing commenced at approximately 10:20 A.M. and ended at 12:30 P.M. Twenty-nine people attended the public hearing including an Executive Director and a Deputy Executive Director of utility authorities, eleven consultants, representatives from the United States Environmental Protection Agency Region II, and the Interstate Environmental Commission. During the October 3, 2003 Public Hearing, one commenter requested an extension to the time allowed for the preparation and submission of comments. In response to the request the Department extended the close of the Public Comment Period from October 18, 2003 to November 1, In a letter, dated October 14, 2003, the Mayors of five municipalities and the Executive Director of a Municipal Sewerage Authority served by combined sewer systems within the Passaic Valley Sewerage Commissioners (PVSC) service area and the Executive Director of the PVSC jointly requested an extension to the time allowed for the submission of comments to the draft permit. In their joint letter, these seven entities expressed a desire to develop a cohesive approach to the work required under the General Permit and requested a 120-day extension to the comment period to accommodate the development of the necessary agreements. In response to these comments, the Department reopened the public comment period. The reopened public comment period closed on January 11, One person during the public hearing made oral presentation of comments. The Department received 15 letters containing written comments.

2 Page 2 of 33 The following is a list of the persons, and their affiliations, which made either written or oral comments on the draft general, permit. Name Affiliation 1 Clifford Gold Clifford Gold Associates 2 Jose Torres, Mayor City of Paterson 3 Sharpe James, Mayor City of Newark 4 Glenn P. Cunningham, Mayor Jersey City 5 Raymond J. McDonough, Mayor Town of Harrison 6 Alberto Santos, Mayor Town of Kearny 7 Stephen Gallo Bayonne MUA 8 Robert Davenport Passaic Valley Sewerage Commissioners 9 Frederick Margron City of Paterson 10 John F. Zisa, Mayor City of Hackensack 11 Andrew Kricun Camden County MUA 12 George D. Fosdick, Mayor Village of Ridgefield Park 13 Eric Anderson Bergen County UA 14 Gerald Calabrese, Mayor Borough of Cliffside Park 15 Deborah Mans NY/NJ Baykeeper 16 John Napolitano Johnson & Conway, LLP on behalf of the North Bergn MUA 17 Paul J. Zarbetski, Mayor Town of Harrison 18 Ryan J. Scerbo DeCotiis, Fitzpatrick, Cole & Wisler L.L.P., on behalf of the Edgewater MUA 19 Vincent Rubino CH2MHILL 20 B. Boris Rukovets Interstate Environmental Commission 21 Patricia A. Kurkul National Oceanic & Atmospheric Administration 22 Charles Dujardin HydroQual, Inc.

3 Page 3 of 33 SUMMARY OF CHANGES The title of the general permit, Combined Sewer Overflow (GP) has been changed to Combined Sewer Systems (GP) to more accurately reflect the scope of the General Permit. APPENDIX A, CONTENTS OF A PUBLIC PATICIPATION WORK PLAN, has been modified in response to the comments received and the Department s review. Under the section entitled Public Participation during the Development and Evaluation of Alternatives, the phrases should be to involve and can be presented in the first two sentences were replaced with the phrases shall be to involve and shall be presented to clarify the Department s intent that these activities are mandatory, not discretionary. Under the section entitled REQUIREMENTS, the phrase, If only one public meeting is held, in the second sentence of the second paragraph has been deleted to clarify that permittees are obligated to the same Public Participation Program requirements regardless of the number of public meetings that are held. Secondly, the phrase in the Public Participation Report was added to that sentence to confirm that the demonstration of compliance with the permit provisions shall be included in the submission of the Public Participation Report. The revised sentence now reads The permittee must summarize in the Public Participation Report how the Permittee complied with provisions of the permit, including:... A summary of the comments received and the New Jersey Department of Environmental Protection s (Department) responses to these comments have been included below: 1. COMMENT: During the Public Hearing, on October 3, 2003, one commenter requested an extension to the time allowed for the preparation and submission of comments. The commenter stated that, as a consultant, he needed additional time to return and meet with his clients and their attorneys and to prepare more comprehensive and specific comments in addition to those presented that day. (1) In response to the request made during the Public Hearing, the Department of Environmental Protection (Department) extended the close of the Public Comment Period from October 18, 2003 to November 1, COMMENT: In a letter, dated October 14, 2003, the Mayors and representatives of several communities served by combined sewer systems within the Passaic Valley Sewerage Commissioners (PVSC) service area, and the PVSC jointly requested an extension to the time allowed for the submission of comments to the draft permit. In the letter, they expressed the desire to develop a cohesive approach to the work required under the terms of the General Permit for Combined Sewer Systems. (2, 3, 4, 5, 6, 8, 9) In response to these comments, the Department reopened the public comment period. The reopened public comment period closed on January 11, This provided a total of 137-days between the Public Notice of the Draft Permit and the close of the Public Comment Period. 3. COMMENT: A group of municipalities served by the PVSC system is looking to work together to develop a comprehensive regional approach to addressing the issues in the revised permit. They asked the Department to keep an open mind and work with the group by perhaps revising the compliance dates in the permit or permitting certain activities to be performed at one representative community on behalf of the group, when the time comes. (9) The National Combined Sewer Overflow (CSO) Control Policy (National Policy) requires each CSO permittee to develop Combined Sewer Overflow Long Term Control Plans (CSO LTCPs). If a number of permittees within a shared system would like to undertake a regional approach to perform the necessary studies and prepare the required reports, the Department would encourage and support such an effort as it may be more cost effective for the Permittees. However, each permittee has a regulatory obligation to satisfy the requirements of the provisions of the Federal Clean Water Act (CWA) for the facilities it owns and/or operates. The Department is prepared to work closely with the regulated communities to accommodate such cost-saving agreements as recommended by the group to the extent practicable.

4 Page 4 of 33 It is important that the cost and performance analyses and feasibility studies required by this permit are completed on schedule to ensure the information is available for consideration in the TMDL/WLA/UAA Process (Including implementation.). Therefore, the Department does not intend to revise the compliance schedule contained in the draft permit. 4. COMMENT: Since CSO s are generally located within older urban developed areas, the costs of these projects affect those communities that are least able to afford them. While the goal of the permit was recognized as laudable, the lack of funding places an unfair burden on urban communities. Municipalities with combined sewer systems have already expended significant sums of money to construct and implement CSO Solids/Floatables Controls Measures. These same municipalities are now expending, on an annual basis, additional monies for the operation and maintenance of these facilities. This is an extraordinarily expensive program for local communities to take and some suspect that it is even worse for large urban communities. Local funding of these projects will most likely require the elimination or reduction of other municipal services in an effort to minimize the financial impact upon the residents. One commenter suggested that the Draft Permit creates an unfunded mandate that must be met by municipalities and other entities facing shrinking budgets and there is a need for the State to provide financial assistance for undertaking the new studies the proposed draft permit requires. Water quality improvements that are the goal for this program will benefit the entire population of New Jersey, and accordingly, funding for the program should be made available in the form of grants to offset the impact upon the current residents and ratepayers. The Department has provided no mechanism for grants or grant type funding for these projects. The Department must consider the development of a grant or loan program for the development of the required studies, evaluation of the results and, where necessary, implementation of new technologies. The State should fund the monitoring and modeling of all pollutant loads into the State s receiving waters, including stormwater and benthic demands, to assess and demonstrate that the disinfection/reduction of CSO discharges is a necessary and vital step towards water quality improvements. Another commenter asserted that the magnitude of the costs involved warrant serious consideration of the need to provide State grant funding for the planning, design and construction phases. In one letter, a Board of Commissioners urged the Department to place these financial concerns before the Legislature with the request that grant funds be made available to underwrite the costs of implementing the requirements that will eventually be promulgated in the reissued permit. (1,10,12,13,16,18) The New Jersey Constitution, Article VIII, Section II, paragraph 5, and N.J.S.A. 52:13H-1 et seq. prohibit certain new statutes and new rules and regulations from imposing unfunded mandates on counties, municipalities, or school districts. The General Permit for Combined Sewer Systems is a not a new law, rule or regulation, and therefore, it is not subject to N.J.S.A. 52:13H-1 et seq. Moreover, even if the permit were considered to be a new law or regulation, it would not be considered an unfunded mandate because it is necessary to comply with Federal laws or rules or to meet eligibility standards for Federal entitlements, and it stems from the failure of the permittees to comply with previously enacted laws, rules and regulations. See, N.J.S.A. 52:13H-3. The General Permit implements the Federal mandates; it does not go beyond them. The Department recognizes that the financial burden of addressing CSO needs in the State is of concern to many communities, and has taken steps at both the Federal and State level to provide financial assistance. The Sewage Infrastructure Improvement Act of 1988 authorized $33.5 million for the award of 90% grants to eligible entities to address stormwater and CSO needs. In addition, the State Legislature as well as the general public supported various bond acts over the years to assist with infrastructure construction needs, particularly the Stormwater Management and CSO Abatement Bond Act of 1989, which authorized an additional $50 million for these two infrastructure categories, as important sources of financing to advance planning, design and construction activities. There have also been a number of Federal initiatives, including a number of proposals that involved a departure from traditional loan-only funding to authorization of grants, which was supported by the New Jersey. Unfortunately, these initiatives have not come to fruition. The DEP is exploring other State funding sources to provide for additional financial assistance to the CSO communities. In addition to these activities that are beyond the direct control of the Department, it should be noted that the Department and the New

5 Page 5 of 33 Jersey Environmental Infrastructure Trust have implemented changes to the Environmental Infrastructure Financing Program (EIFP) to provide enhanced financing to CSO project sponsors. The Department will continue its efforts to explore additional financial assistance for Combined Sewer System communities. The work required under this General Permit is required by the Federal Clean Water Act and is necessary to address CSO related impacts and, therefore, it is important that the studies required under the General Permit be conducted. 5. COMMENT: The NJDEP appears to be leaning towards the presumptive approach for development and implementation of a Long-Term Control Plan as defined in the USEPA s National CSO Control Policy. Past receiving water monitoring and modeling studies conducted in the region and the nation have demonstrated that separate, storm sewer discharges are a major source of pollution within riverine and upper estuary watershed. Accordingly, vast monetary investments may be required of CSO municipalities for implementation of the Long-Term Control Plan without the realization of any significant improvement of water quality. The State of New Jersey and the Department should take the demonstrative approach to the development of the Long-Term Control Plan and should fund the monitoring and modeling of all pollutant loads into the State s receiving waters, including stormwater and benthic demands, to assess and demonstrate that the disinfection/reduction of CSO discharges is a necessary and vital step towards water quality improvements. (12) The National Combined Sewer Overflow (CSO) Control Policy, which was incorporated at N.J.A.C. 14A-11, Appendix C, requires all CSO permittees to immediately undertake a process to develop CSO LTCPs which include the evaluation of alternatives for attaining compliance with the CWA, including compliance with water quality standards and protection of designated uses. The National CSO Control Policy expects the CSO LTCPs to consider a reasonable range of alternatives. In the development of CSO LTCPs, the National CSO Control Policy requires permittees to adopt one of two approaches. These are: The presumption approach, with performance criteria (i.e., 4-6 untreated overflow events or 85 percent by volume capture) used as an endpoint for LTCP development and implementation; and The demonstration approach, which entails developing and implementing an LTCP that includes a suite of CSO controls sufficient to meet applicable water quality standards; Under either approach, the Permittee will need to plan controls to allow cost-effective expansion or costeffective retrofitting, if additional controls are subsequently determined to be necessary. The presumption approach presumes the LTCP provides an adequate level of control to meet the water qualitybased requirements of the CWA if the LTCP meets the performance criteria stipulated in the National CSO Control Policy. Under the presumption approach, controls adopted in the LTCP should be required to meet one of the following criteria: No more than an average of four overflow events per year, provided that the permitting authority may allow up to two additional overflow events per year; The elimination or the capture for treatment of no less than 85 percent by volume of the combined sewage collected in the CSS during precipitation events on a system-wide annual average basis; or The elimination or removal of no less than the mass of the pollutants identified as causing water quality impairment through the sewer system characterization, monitoring, and modeling effort for the volumes that would be captured for treatment above. An LTCP that meets the criteria listed above can be presumed to provide an adequate level of control to meet the water quality-based requirements of the CWA, provided the permitting authority determines such a presumption is reasonable in light of the data and analysis conducted in the characterization, monitoring and modeling of the system and consideration of sensitive areas (II.C.4.a of the National CSO Control Policy). The Policy also provides that a...permittee may demonstrate that a selected control program, though not meeting the criteria of the presumption approach, is adequate to meet the water quality-based requirement of the CWA... This approach is referred to as the demonstration approach. The demonstration approach assumes that adequate data will be developed to reasonably demonstrate that implementation of the LTCP will provide for attainment of water quality standards. In selecting the demonstration approach, the permittees would have several options for developing an LTCP that will be sufficient to meet applicable water quality standards. A permittee could, for example, develop an

6 Page 6 of 33 LTCP that would provide for attainment of existing applicable water quality standards. Alternatively, the permittees could use a TMDL Process to demonstrate that water quality standards can be attained through a combination of CSO controls and other controls. The National CSO Control Policy identifies four criteria for successful use of the demonstration approach. An LTCP based on the demonstration approach should show that: The CSO LTCP will protect water quality standards unless the standard cannot be met as a result of natural conditions or other pollution sources; The overflows remaining after implementation of the control program will not prevent the attainment of water quality standards; The planned control program will achieve the maximum pollution reduction benefits reasonably attainable; and The planned control program is designed to allow cost effective expansion or cost effective retrofitting if additional controls are subsequently determined to be necessary to meet water quality standards, including protection of designated uses. Where water quality standards cannot be met because of other pollution sources, a TMDL or other watershedbased tool should be used to determine and apportion pollutant loads. Regardless of whether the Presumption or Demonstration approach is used, the CSO LTCP ultimately selected must be sufficient to meet water quality standards and other Federal CWA requirements. The permittee is required to undertake a post-construction water quality assessment program of monitoring and collecting sufficient data to demonstrate compliance with water quality standards, including protection of designated uses. In May 1999, the Department and USEPA Region 2 entered a Memorandum of Agreement including an 8-year schedule to produce TMDLs for all water quality limited segments remaining on the 1998 Section 303(d) List of Water Quality Limited Waterbodies in New Jersey or provide information necessary to remove waterbodies from the list. Each of the CSO impacted waterbodies has been scheduled for a TMDL development for fecal coliform in the USEPA/NJDEP Memorandum of Agreement, as amended. The TMDL process may result in the development of a waste load allocation (WLA) which may necessitate the designation of specific levels of pathogen controls on CSO discharges. The demonstration approach encourages the development of total maximum daily loads (TMDLs) and/or the use of a watershed approach throughout the CSO LTCP process. In conducting the existing baseline water quality assessments as part of the system characterization, for example, the specific pollutants causing nonattainment of WQS, including existing or designated uses, would be identified, and then the sources of these pollutants can be identified and loads apportioned and quantified. Assessments would be made of the relative contribution of CSOs and other sources to the total pollutant loads to the receiving waters, and then a range of controls could be identified to target the CSO contribution. Controls for the non-cso sources of pollutants could also be assessed at the same time. The Department is pursuing a Demonstration Approach to CSO LTCP development and implementation and not the Presumption Approach. The results of the feasibility studies required under the General Permit may, also, be useful in a Use Attainability Analysis and possibly assist in the development of a basis for recommending a revision to the current Water Quality Standards. This approach accommodates the integration of water quality standards reviews and revisions, as appropriate, with the development of CSO LTCPs that supports the attainment of water quality standards without causing substantial and widespread economic and social impacts. 6. COMMENT: The Town of Harrison is currently in the Distressed Cities Program. The New Jersey Department of Community Affairs is supervising the Town s fiscal operations and providing necessary funding for our budget. The Town cannot afford a costly CSO project if no grant money is received from the State to pay for it. Over the last few years, the Town has spent well over 2 million dollars to evaluate, design, construct and maintain the current CSO solids/floatables control facilities in the Town. The Town is still paying off the loans that enabled it to construct that system. (17) At the onset of the CSO Control Program, the Department recognized that remediation of the CSOs is expensive. The Department s acknowledges the expense the City has incurred and recognizes that compliance

7 Page 7 of 33 with CSO related requirements are a significant economic burden to the local government units. To ease the fiscal impact of such compliance on local government units, the Department is implementing a phased approach for CSO controls. It also has developed programs to provide financial assistance to local government units for the planning, design and construction of the needed Combined Sewer System infrastructure improvement projects. Moreover, as stated earlier, the Department is not in the position to waive the requirement of compliance with the provisions of the General Permit. As part of the Consolidated Appropriations Act for Fiscal Year 2001 (P.L. No ), Congress amended Section 402 of the Clean Water Act (CWA) to make it a Federal requirement that National Pollutant Discharge Elimination System (NPDES/NJPDES) permits, administrative orders, or consent decrees for the control of CSOs shall conform to the 1994 Combined Sewer Overflow (CSO) Control Policy. The National Combined Sewer Overflow Control Policy requires all CSO permittees to immediately undertake a process to develop CSO LTCPs which include the evaluation of alternatives for attaining compliance with the CWA, including compliance with water quality standards and the protection of designated uses. Please refer to the Response to Comment No. 4 for additional relevant information. 7. COMMENT: Although the Borough of Cliffside Park does not own a combined sewer overflow point, it does have a sanitary sewer with Infiltration and/or Infiltration (I/I) concentration that contributes flow to the Borough of Edgewater and the combined sewer systems that flow to the Borough of Fort Lee. Due to the design, age, local geology, and nature of the system, it has been determined that complete separation of the collection system is neither practical nor economically feasible. Nonetheless, the Borough has undertaken extensive efforts with regard to reducing infiltration and inflow to its collection system. The Borough s Infiltration and Inflow (I/I) reduction plan has included the systematic investigation and direction requiring residents to remove roof leaders, catch basins, illicit connections; the Borough, also, installed limited separate storm sewers where it was able to. To date, the Borough has expended funds in excess of $2,500,000 for engineering, legal, administrative and construction costs in this regard. This sum does not include the indirect cost of redirecting Borough personnel to assist in these efforts. The Borough of Cliffside Park supports the goals and objectives of the Department in protecting our environment and understands your charge to implement Federal mandates. Please recognize, however, that implementation of these regulations, as drafted, would bankrupt our community. The expenditure of significant public funds, to conduct additional study work in an area that has already been extensively evaluated, is redundant and will not yield appreciable results. (14) The Department acknowledges the fiscal concerns expressed by the Borough of Cliffside Park, however, it is not in a position to relieve the Borough of its obligations to comply with the requirements of the Federal Clean Water Act (CWA) as defined by the National CSO Control Policy. The Department does not believe that compliance with the requirements of the General Permit would bankrupt the Borough of Cliffside Park. First, in accordance with the Department s records, the Borough of Cliffside Park has two small sections of combined sewers in its sewer system. The Borough does not own or operate a CSO Point or CSO Control Facility. Therefore, the Borough would not need to evaluate the feasibility or cost to provide disinfection to discharges from CSO Points or how to increase the conveyance of wastewater from CSO Control Facilities to the DTW for treatment. This should substantially reduce the engineering studies required of the Borough based on the permit. Second, the Borough of Cliffside Park, in an Administrative Consent Order dated June 21, 2001 it entered into with the Department, agreed to permanently close the overflow release point identified as Regulator 10 on or before July 1, Completion of this action would eliminate one of the small combined sewer sections. The other section, which consists of 41 acres, conveys sewage to the Bergen County UA through the Borough of Fort Lee. Therefore, the Borough of Cliffside Park s obligations under the General Permit would be limited to those requirements applicable to the 41 acres of combined sewer system tributary to the Borough of Fort Lee sewer system. The above referenced findings are based upon the information available in the Department s files. The findings may change depending upon the results of additional information that demonstrate that the Borough owns and/or operates additional portions of a combined sewer system. The Department encourages the

8 Page 8 of 33 Borough of Cliffside Park, or any other entity, to contact the Department to clarify the applicability of the General Permit provisions to the types of facilities they own and/or operate. The Department recognizes the efforts the Borough has made in improving its sewerage infrastructure. The Department, on numerous occasions, met and advised the Borough s representatives of the availability of $101,762 Sewerage Infrastructure Improvement Act 90% Design Grant money to the Borough. Unfortunately, the Borough has not pursued the award of the grant funds. The Department has assisted the Borough in effecting the referenced sewer separation work by providing the community with $1,130,000 in low interest loans and is prepared to provide additional financial assistance in the form of low interest loans through the New Jersey Environmental Infrastructure Financing Program. Please refer to the response to Comment No. 4 for additional discussion on the availability of financial assistance from the Department. 8. COMMENT: Some commenters stated that there appeared to be an excessive amount of redundant work. (9, 15) The Department has carefully developed and structured various provisions of the General Permit to clearly identify the studies and submissions that are absolutely necessary to minimize the economic burden of compliance with the National CSO Control Strategy. The Department does not believe that the studies specified in the General Permit that are specific to each element of a combined sewer system have been previously performed. However, if a permittee has performed the analyses and developed the feasibility studies and cost and performance analyses or can utilize some, or all, of the information from previous studies to develop the submissions specified in the General Permit, the Permittee is encouraged to do so, in consultation with the Department. Given the desire to coordinate the studies derived from the General Permit with the TMDL/WLA and UAA Processes, if applicable, the Permittee is requested to present this information to the Department for consideration as soon as possible and preferably no later than 60-days after the Effective Date of the Permit. However, it should be noted that the studies are site-specific evaluations and the use of information from previous feasibility studies and cost and performance analyses does not waive a Permittee s obligation to comply with the Public Participation Program requirements of the General Permit. 9. COMMENT: Reference is made to the Fact Sheet, Page 2 of 12, and to Part 0, Section 3, Page 24 of 27, of the Draft Permit. This section of the Draft Permit states that owners of CSOs are being required to develop and evaluate the feasibility of pathogen control technologies to meet the requirements of the Federal Clean Water Act. The Edgewater Municipal Sewerage Authority objects to this requirement for several reasons. Although the Authority voluntarily acted to separate nearly ninety-percent (90%) of its combined sewers at a cost of approximately $2,000,000.00, it was deemed non-cost effective to separate the remaining ten percent (10%) of the system which effort was estimated to cost an additional $1,200, Thus, the Authority, with the approval of the Department and in conjunction with the Borough of Fort Lee, installed a netting chamber upstream of the remaining CSO outfall (owned by the Borough of Fort Lee). The netting chamber is considered to be in compliance with the United States Environmental Protection Agency s Nine Minimum Control Measures as identified in the National CSO Control Policy. The Authority expended over a quarter of a million dollars to design and install the netting chamber and has expended additional funds to maintain the chamber since installation, in reliance upon the Department s previous determination that this capital improvement would bring the Authority s remaining CSO into compliance with State regulations. The Authority requests that the Department seriously consider the Authority s previous expenditures associated with CSO compliance efforts when evaluating the Authority s conclusions related to installation of pathogen control technologies. (18) The Department recognizes the achievements that the Edgewater Municipal Utilities Authority (EMUA) has made in minimizing the impact of its Combined Sewer System and associated Combined Sewer Overflow Points on the waters of the State. The Department assisted the Authority in developing its Long-term Solids/Floatables Control Plan (The sewer separation project referenced by the Authority) by providing planning and design grants of $190, and $113, The Department further assisted in the

9 Page 9 of 33 implementation of the Authority s selected plan by providing $1, in low interest loans through the State Revolving Fund Loan Program. During the development and selection of the Long-term Solids/Floatables Control Plan, the Department advised the EMUA, and its representatives, that the National CSO Control Policy would obligate the Authority to bring all CSO Points into compliance with the technology-based and water quality-based requirements of the Federal Clean Water Act and how this obligation would be applicable to any remaining CSO Points. As an owner and/or operator of a portion of a combined sewer system that conveys wastewater to a Combined Sewer Overflow Point (A CSO Point in the Borough of Fort Lee.), the Authority is required to comply with the provisions of the permit that are applicable to the remaining portions of the combined sewer system depending upon the type of facilities it owns and/or operates. If the Authority has permanently sealed and eliminated all CSO Points that were owned and/or operated by the Authority then the provisions of Part O, 3 b, Cost and Performance Analysis for Combined Sewer Overflow Points Operation, may not apply. 10. COMMENT: As detailed in the City s December 17, 2002 correspondence to Commissioner Bradley M. Campbell of the NJDEP regarding the mandated development and implementation of a CSO Discharge Characterization Study Monitoring Program Proposal and Work Plan, the City of Hackensack continues to be outraged by both the existing and new requirements being imposed by the NJDEP on the City s Combined Sewer Overflow (CSO) facilities. The City has always responded to NJDEP s requirements in an expeditious manner, already expending $9M in taxpayer dollars to ensure compliance with NJDEP s CSO initiatives. It continues to be the City s opinion that we have already expended an enormous amount of taxpayer dollars on CSO mandated requirements. It is the City s understanding that the current requirements and compliance schedules as stated in its existing General Permit NJ will remain in effect along with the associated costs for the implementation of those requirements which will be in excess of the $9M already expended by the City for mandated CSO initiatives. In addition, new provisions are proposed to be incorporated into the revised General Permit that will provide for the development of a CSO Long-term Control Plan (LTCP), imposing additional costs onto already fiscally impecunious CSO communities. Subsequent to the development of a LTCP, will the State eventually require the implementation of that plan at yet another cost? How many more requirements will be imposed by the NJDEP and at what cost to CSO communities? When is enough, enough? (10) The Department recognizes the significant efforts the City has made and the costs it has incurred in eliminating dry weather overflow and controlling the discharge of solids/floatables materials. The Department appreciates the City s efforts has spent and recognizes that regulatory compliance can be a significant economic burden to the local government units. To ease the fiscal impact of such compliance on local government units, the Department is implementing a phased approach for CSO controls. It also has developed programs to provide financial assistance to local government units for the planning, design and construction of the needed Combined Sewer System infrastructure improvement projects. However, the Department is not in the position to waive the requirement that the City comply with the provisions of the General Permit. Compliance with the National CSO Control Policy is a requirement of the Federal CWA. The National Combined Sewer Overflow Control Policy requires all CSO permittees to immediately undertake a process to develop CSO LTCPs which include the evaluation of alternatives for attaining compliance with the CWA, including compliance with water quality standards and protection of designated uses. The Department can only waive the requirements of the National CSO Control Policy as it pertains to a combined sewer system if all CSO Points associated with the specific combined sewer system are eliminated. Several communities have selected sewer separation and CSO Point elimination, as final plan. The alternative to the elimination of all CSO Points is to bring all CSO Points into compliance with the Federal Clean Water Act. The phased approach taken and reflected in this General Permit is to evaluate the feasibility and determine the costs associated with bringing the CSO Points into compliance with State Surface Water Quality Standards. When, the TMDL/WLA and, if necessary, the UAA processes are complete, the

10 Page 10 of 33 CSO control implementation needs will be established. Until that time, the Department does not know how much additional control will be required. The commenter is correct in observing that the General Permit requires only the performance of feasibility studies and does not require implementation of a specific CSO LTCP at this time. Implementation of a CSO LTCP will be required, if necessary, at a later date through a subsequent permit action after the studies required by this General Permit and the TMDL has been completed, including UAA Processes, if applicable. 11. COMMENT: Many of the comments submitted to the Department included concerns over the cost of implementing the proposed General Permit conditions. It is NY/NJ Baykeeper s belief that the affected wastewater treatment facilities are overstating their obligations under the proposal, and, therefore, overestimating the actual cost to implement the proposal. The Sewerage Authorities should review the Department s Financing Program that allows participants to borrow money at extremely low interest rates. Additionally, the Department has recently included even lower rates for qualified participants under the Smart Growth Initiative. These include projects serving an approved Urban Center and that eliminate or improve combined sewer overflows. (15) The Department acknowledges the commenter s accurate mention of the low-cost financing available to CSO permittees to construct needed CSO remediation projects through the Environmental Infrastructure Financing Program (EIFP) and offers the following additional information. Until recently, all project sponsors received a loan for half of the project costs from the Trust at market rate and a loan for the remaining project costs from the Department at 0% interest. However, in order to advance Governor McGreevey s smart growth initiative, the Department has made some significant changes to the EIFB beginning in FFY2003, which are being continued in the current Priority System Proposal. These changes offering the Smart Growth Financing Package modified the percentage of project costs the Department and the New Jersey Environmental Infrastructure Trust for certain project categories including CSO Abatement Projects. As a result, for the construction of CSO Abatement Projects, the Department now provides 75% of the project costs at 0% interest, while the Trust provides 25% of the project costs at market rate. Under last year s financing program, this translates to the award of a 20-year loan with an effective interest rate of 1.1%. For additional information regarding the availability of assistance under the Financing Program please refer to the Clean Water Financing Proposed Priority System, Intended Use Plan, and Project Priority List for Federal Fiscal Year 2005 or visit the Division of Water Quality s website for the Clean Water Financing Program at COMMENT: The proposed regulations also address maximizing capture of wet weather flows in combined sewer collection systems. In many combined systems, the collection system and the downstream treatment plant are owned by the same entity. However, this is not the case in Camden City and Gloucester City where the Cities own their collection systems and the Camden County Municipal Utilities Authority (CCMUA) owns the downstream sewage treatment plant. In such cases, it is essential that maximization of wet weather capture in collection systems, required through general CSO permits, be closely, coordinated with maximization of wet weather capture in treatment plants, required in specific NJPDES permits. I recommend that, in such cases, a global analysis of both the collection system and treatment plant is made, rather than two separate studies conducted independently of each other. (11) Generally, there are few combined sewer systems (CSSs) in New Jersey in which the entire collection, conveyance, and treatment facilities are owned and/or operated by a single entity. For the most part, CSSs are subject to fragmented ownership and operational responsibilities. The General Permit for Combined Sewer Systems was developed to compensate for these fragmented relationships. The permit has the ability to bring the effective regulation of these systems statewide under one regulatory umbrella and to unify control strategies and compliance schedules. The activities proposed under the General Permit are restricted to developing cost and performance relationships for selected facilities as defined under the permit. The requirements are applicable only to Combined Sewer Systems (CSSs), Combined Sewer Overflow Points, Combined Sewer Overflow Control

11 Page 11 of 33 Facilities and Combined Sewer Collection and Conveyance Systems. The feasibility studies are to be sitespecific feasibility studies that can be completed as individual efforts without the need for a global analysis. The General Permit does not require the selection of a final plan, which involves the assertion of preference of one set of alternatives over another. In future administrative actions, the Department will propose to modify or revoke and reissue other NJPDES permits applicable to the Domestic Treatment Works (DTW) that receive and treat wastewater generated from CSSs by adding the appropriate CSO LTCP development provisions applicable to treatment facilities. These provisions will compliment those contained in this General Permit by requiring the determination of the feasibility and cost of receiving and treating additional sewage flows at the DTW. Irrespective of the above, the Department recognizes the merit and the economy afforded through joint efforts or unified approaches to this and other facility planning efforts. As noted in the Response to Comment No. 3, the Department is prepared to work closely with the regulated communities to accommodate such efficient and cost-saving agreements between appropriate entities to the extent practical. The Department recognizes that joint efforts by the CSS entities has been a formula for success and is prepared to work with the interested parties in the fostering of such efforts to the extent practical. 13. COMMENT: The City of Paterson is of the opinion that a burden is being placed on the City to evaluate a variety of technologies with varying levels of effectiveness and to evaluate a variety of hydraulic conditions which would result in CSO discharges for a number of specified frequencies. The Department should undertake whatever work is required on its part to provide the specific criteria, which would be required of the Permittee. This would permit us to focus our limited financial resources on developing the required solution rather than evaluating a number of scenarios, most of which would be ultimately dismissed. (9) As stated earlier, the National Combined Sewer Overflow Control Policy requires CSO permittees to immediately undertake a process to develop CSO LTCPs which include the evaluation of alternatives for attaining compliance with the CWA, including compliance with water quality standards and protection of designated uses. CSO LTCPs must ensure that both the technology-based and water quality-based requirements of the Federal CWA are met. With respect to water quality-based requirements, the National CSO Control Policy provides that development of the long-term plan should be coordinated with the review and appropriate revisions of Surface Water Quality Standards and implementation procedures on CSOimpacted receiving waters to ensure that the long-term controls will be sufficient to meet water quality standards (See N.J.A.C. 7:14A-11, Appendix C,). The most significant water quality concern directly associated with CSOs is pathogens. The State Surface Water Quality Standards (See N.J.A.C. 7:9-1.5(h) 5i) prohibit regulatory mixing zones for indicators of pathogenic quality. Water quality-based effluent limitations for indicators of pathogenic quality are developed by applying the current surface water criteria at the point of introduction to the waters of the state or at the end-of-the-pipe. The Department recognizes that CSO Points discharge pathogens in concentrations significantly greater than any State Surface Water Quality Criteria for pathogens. Therefore, the Department has proposed that Permittees develop and evaluate control alternatives, or combinations of alternatives, and undertake cost and performance evaluations of pathogen control technologies to assess the feasibility of implementing pathogen controls including those that meet the current surface water criteria for pathogens. The Department has initiated a process that facilitates the coordination of the CSO LTCPs with the numerous State and Federal regulatory programs and initiatives. Among the various influencing factors associated in developing a CSO LTCP are the Total Maximum Daily Load (TMDL)/Waste Load Allocation (WLA) process and Use Attainability Analyses (UAA). UAAs are structured scientific assessments of the physical, chemical, biological and economic factors affecting the attainment of a designated beneficial use. The outcome of a UAA may range from the assignment of effluent limitations equivalent to State Surface Water Quality Standards criteria for bacterial quality to no limitations at all. The UAA may provide sufficient information for the State to determine that the designated use is not attainable and also may provide the basis for adopting an alternative use and the criteria to protect that use. The cost and performance analyses proposed in the General Permit may assist in developing a UAAs and can serve as part of the basis for the establishment of discharge limitations that may be less restrictive than the existing surface water criteria.

12 Page 12 of 33 States, municipalities or consultants may collect the data and conduct the analysis to support the UAA. The State is responsible for evaluating the data and information. Only the State may determine whether the use is attainable. If the determination results in a proposed revision to water quality standards, the State must provide the UAA and the proposed revision to the public for review and comment and to EPA for approval or disapproval. Revisions to water quality standards based on CSO discharges can be considered when the controls necessary to attain the standard would cause substantial and widespread economic and social impact. EPA policy allows states to revise their water quality standards based on the water quality improvements to be achieved by the maximum level of CSO control that would not cause substantial and widespread social and economic impacts on the community. Thus CSS Permittees may be required to implement control measures that will bring some improvement to the receiving water body, but, may not bring receiving waters into complete compliance with Surface Water Quality Standards and designated usage. Such levels of control would then lie somewhere between the current surface water criteria and the no-action alternative. There is an alternative to being authorized under the General Permit and participating in the specified studies. As provided in Part I, A, 4, a, of the General Permit, any permittee authorized under this permit may request to be excluded from authorization under this permit by applying for an individual DSW permit. An individual permit may include more stringent requirements based on site-specific conditions. The Department could waive a permittee s obligation to participate in the CSO LTCP process, provided it commits to an enforceable commitment to design, construct and operate a plan that eliminates the CSO Points in an appropriate time period. 14. COMMENT: Disinfection of combined sewer system discharges would certainly reduce pollutant loadings to the Delaware River to some extent. However, when one considers the velocity of the storm flows exiting the CSO systems and the need for detention time in order for disinfecting chemicals to achieve any efficacy, it seems that requiring disinfection at CSO s may not be reasonably feasible, except at a cost that might dwarf the expected benefits. (11) The General Permit proposes a process to conduct structured engineering studies including scientific assessments of the physical, chemical, biological and economic factors associated with controlling the discharge of pathogens from CSO Points. The studies, when completed, should demonstrate the feasibility and economics of implementing pathogen controls including disinfection. Please refer to the Response to Comment No. 13 for more discussion on how the feasibility studies and Cost and Performance Analyses will be used. 15. COMMENT: The cost and performance analysis requires the Authority to develop and evaluate several different disinfecting technologies. Our engineers are unaware of a widespread use of these technologies in CSO applications. The State would be better served to develop several demonstration projects to determine whether or not these technologies are actually successful prior to requiring each community to study their application. Preliminary discussion with the Authority s engineers has raised serious concerns that these technologies are not suitable for the physical and hydraulic conditions present within most communities. Since analysis of these technologies without pilot testing would be speculative at best, the analyses performed would not be reliable in any degree of certainty. (16) The effective management of CSSs and the control of CSOs may involve the development and application of innovative designs and alternative technologies requiring the services of consultants that are adequately qualified to address the permit requirements. The first important step begins in the development of an effective Request for Proposal, or RFP, for the solicitation of consulting engineering services. During the process of preparing qualifications and proposals it is important that the prospective consultants are provided with the information needed to guide the development of their demonstration of technical expertise and proposed approach. The provision of appropriate information to prospective consultants may allow them to recognize other specific information or services that the local government entity may need for developing and implementing an effective CSO LTCP strategy.